When Chutzpah is an Understatement

Scott Lilly sets the record straight on earmarking and explains why current criticism over the appropriations process is misguided.

About 30 years ago the Hunt Brothers came close to cornering the world market on silver. But where they failed House Republican leaders have succeeded. They have clearly established a corner on the market in political brass.

Reps. John Boehner (R-OH), Roy Blunt (R-MO) and Jerry Lewis (R-CA) all actively participated in the extraordinarily irresponsible explosion of congressional earmarking that began shortly after the Republicans gained control of the Congress in 1995 and lasted until the voters tossed them out this past November. But according to their political rule book, making a huge mess doesn’t mean you can’t complain about how someone else is cleaning it up.

Boehner and company understandably do not want the debate on this year’s appropriation bills to be focused on the substantive disagreements defined by White House budget director Rob Portman. Portman is threatening vetoes over congressional efforts to provide better medical care for returning veterans, long-needed help for first responders, and federal financial support for school improvement.

In an effort to sidestep those political mine fields they have instead decided that voters are dumb enough to forget who gave us “The Bridge to Nowhere,” who increased earmarking in the Labor, Health and Human Service Education bill from zero to more than a billion dollars a year, who tripled the number of earmarks in the defense bill, and who is currently the target of criminal investigations because of allegations that their earmarking practices were not only wasteful but also corrupt. Why, they ask, should anyone doubt their commitment to reform?

So indignant are they at the slow pace in reforming the abusive conduct they developed into an art form that they are now attempting to stop the movement of all appropriation bills and as a result funding for myriad critical federal programs.

The truth is that a lot of progress has already been made. On the first day of the new Congress, rules were adopted that:

  • Prohibited the use of earmarks to reward or punish a member of Congress for any vote he or she might cast.
  • Required that any member of Congress requesting a district-oriented earmark disclose in writing the name and address of the intended recipient, the purpose of the earmark, and whether the member has a financial interest in the organization or would benefit personally from the inclusion of the earmark.
  • Required that all matters before a conference committee (including earmarks) must be subject to full and open debate, that a final version of a conference report must be voted on by a meeting open to all members of the conference committee, and that no item (including earmarks) may be added to the legislation after the conference committee has adjourned.

If actions speak louder than words, the clearest message was sent when the new Congress excluded earmarks entirely from the nine fiscal year 2007 appropriation bills they had to complete in January—more than three months into the fiscal year.

The new Congress also pledged to cut the number of earmarks in the fiscal year 2008 appropriation bills to half the number that the previous Congress has enacted in fiscal year 2006.

And finally, the new Congress pledged to abandon a system in which earmarks were often determined by the desires of individual members without review of committee members, staff, or the agencies charged with executing the directed spending.

But the old Congress left more impediments to reform behind them than simply a system seemingly crafted to accommodate corruption and political abuse. One impediment was the mass of unfinished appropriations bills that consumed the first full month of the new Congress. The new Congress was also forced to grapple with reinvigorating the institution’s constitutional responsibility to conduct effective oversight on the programs and policies of the executive branch. It had to deal with the largest supplemental in history and specifically the administration’s intractable commitment to the Iraq war.

Implementation of effective scrutiny over earmark requests was further delayed in March, when the ranking member of the Appropriations Committee demanded an extension in the deadline for submitting earmark requests so that certain of his members could get further clarification as to whether under the new rules they would have to declare a financial interest in the earmarks they wished to request.

All of these impediments absorbed massive amounts of the time that is essential for establishing any responsible system for sifting through the more than 30,000 earmarks requested by members of both parties each year and eliminating those that do not comply with committee standards, conform to the requirements of the legislation that authorizes the programs they funded, or otherwise simply don’t pass the smell test.

An additional impediment that has not been broadly discussed is the legal difficulties facing Lewis, the ranking member of the Appropriations Committee. These difficulties are a direct result of how he handled earmarks while serving as chairman of the full committee—and, prior to that, chairman of the Defense subcommittee—and continue to impede the committee’s ability to exercise effective scrutiny over earmark requests.

A grand jury investigation into his conduct regarding earmarks has resulted in demands for documents that have forced the committee to scour tens of thousands of pages and consumed massive amounts of staff time not only of the full committee but of many of the individual subcommittees as well.

Why do earmarks require staff scrutiny? Many observers have naively argued that they don’t. But the question they have yet to answer is which of the 30,000 plus earmarks that have been requested are to be included in appropriation bills and which are to be left out? Given that the total dollar value of earmarks in the coming year is to be cut in half, about 80 percent of those requests must be excluded—but which 80 percent? That’s where the staff comes in.

In addition to those that involve plain bad judgment or even possible corruption, there are a host of other issues that have to be examined:

  • Some requests propose to earmark programs such as those within the National Science Foundation, the National Institutes of Health, or the Department of Homeland Security which have never before been earmarked and which the committee strongly opposes earmarking.
  • Some requests are duplicative.
  • Some requests fail to make it clear which programs the funds requested are to come from.
  • Some requests ask that funds earmarked within a specific program be used for purposes that the underlying legislation that created that program does not authorize.
  • Some requests appear to meet all of the necessary criteria but in the end turn out to be items that the requesting members are not really interested in.

If each earmark were requested on a single sheet of paper, the pile of paper necessary for 30,000 earmark requests would be well over 15 feet high.

When it became apparent late this spring that the process of sifting through the requested earmarks could not be completed before the deadline when appropriation bills have to be sent to the floor if they are to be completed before the beginning of the fiscal year, a difficult decision had to be made. Either consideration of the appropriation bills had to be delayed, or Congress would have to deviate from the new requirement that appropriation earmarks and the names of their sponsors have to be listed before the bills are considered on the House floor.

Delay in the consideration of appropriation bills is a more extreme step than most observers of the process may recognize. It would mean the House would grapple with the bills in July and September rather than June. Senate consideration would occur in September and October, and completion of conference agreements would take place in November and December. While that schedule is not inconsistent with the performance of the Congress over the past decade, it is a schedule that should be avoided at all cost.

When the Congress does not provide the executive branch with the funds necessary to do the government’s business before the beginning of the new fiscal year, which starts on October 1, it means that agency heads, program officers, and those who award grants or write contracts have only a fraction of a year to do the work that should take a full 12 months. This year many agencies did not get their final apportionments until March, leaving them with half a year to do a year’s worth of work. That inevitably leads to poor decisions, sloppily worded contracts, hastily considered grant awards, and ultimately wasted tax dollars.

The coming year is even more complicated than those of the recent past given the deep divisions that are already in evidence between the Congress and the White House on spending priorities. If many or all appropriations bills face a possible veto, it is even more important that the process not be delayed at the outset—and, I would argue, not be delayed while Congress fills in the blanks on projects that will ultimately constitute only 1 percent of discretionary spending.

The solution that the committee has concocted is a reasonable one. Allow the bills to go forward immediately without listing the earmarks. Programs and agencies that contain spending accounts that will eventually be earmarked will be funded at the level expected necessary to accommodate the earmarks. After the committee members and staff have had sufficient time to sort through the thousands of requests, consult with their sponsors, and decide which will be included, the lists will be published just as required by the rules.

The major problem with the proposal is that the agreed-to earmarks will not be available in time for the initial floor consideration of the bill in which they will be attached. But they will be available well in advance—probably more than a month—of the convening of a conference committee. Any earmark found to be egregious during that period can be targeted in the motion to instruct conferees, a motion controlled by the minority party. In addition, the new reforms adopted in January insure that any earmark may be fully debated in conference committee and any member of the conference can move to strike any proposed earmark.  

It is regrettable that the process cannot be implemented as it was designed. Certainly next year there will be no excuse. But under the current circumstances, House leaders have chosen the course that will permit the maximum transparency and the least delay. It is a far more open and democratic process than we have ever had before. Despite the objections of the foxes who are trying to regain entry to the hen house, it is the best course for the country.

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Scott Lilly

Senior Fellow